State v. Morris , 2022 Ohio 94 ( 2022 )

[Cite as State v. Morris, 2022-Ohio-94.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-31
:
v. : Trial Court Case No. 2020-CR-573
:
GAYLA MORRIS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 14th day of January, 2022.
...........
IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449,
Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
KAREN S. MILLER, Atty. Reg. No. 0071853, P.O. Box 341274, Beavercreek, Ohio 45434
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Gayla Morris appeals from her conviction, following a plea of no contest, to
one count of aggravated possession of drugs, in violation of R.C. 2925.11(A), a felony of
the fifth degree. She was sentenced to three years of community control. We will affirm
the judgment of the trial court.
{¶ 2} Morris was indicted on October 6, 2020, and she pled not guilty on December
29, 2020. On February 26, 2021, Morris filed a motion to suppress, and the State filed
a response. The trial court held a hearing on the motion on March 16, 2021.
{¶ 3} At the hearing, Trooper Anthony Guajardo testified that on October 17, 2019,
at 2:50 a.m., he was on duty and pulled over a vehicle driven by Jon Bussard in which
Morris was a passenger. Guajardo testified that he stopped Bussard “[b]ased off his
driving behavior. When he saw me, he immediately pulled over and parked. And I ran
the license plate and it came back expired.” When asked what he observed when he
made contact with Bussard, Guajardo responded that he observed signs of impairment,
including “[an] odor of alcohol” and “bloodshot, glassy eyes.” Guajardo also stated that,
in his experience, when there is a “smell like airbag deployment, that normally goes along
with meth, and I could smell that was coming from his breath.” Guajardo testified that
Bussard claimed to have been headed to a friend’s house and to have stopped in front of
the house, but Bussard could not identify “which one it was, what the number was,” and
Bussard was trying to get wi-fi on his phone to contact his friend.
{¶ 4} State’s Exhibit 1, a copy of the dash-camera recording from Guajardo’s
cruiser, was played for the court. Guajardo testified that he initially investigated whether
Bussard (Morris’s boyfriend) was impaired, and while he did so, Morris remained in the
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vehicle. Guajardo also testified that he had asked Morris “not move around and try to hide
stuff,” but that she had nonetheless “tr[ied] to grab things to put into her purse” and had
been very hesitant to get out of the vehicle.
{¶ 5} Guajardo stated that when he finished with Bussard and made contact with
Morris, he told her multiple times that she did not have to answer any questions, and she
was not restrained. Guajardo asked Morris if she had anybody who could pick her up
from the site of the traffic stop; he did not remember her answer. Guajardo also offered
to give Morris a ride to the police station at a point when she was not under arrest, and
he allowed her to gather her belongings before she exited the vehicle. Once she got out
of the vehicle, Guajardo frisked her for weapons before she got in the patrol car, as
depicted in the video, as he did before he let anyone in the patrol car. At this point, he
looked in her purse and saw “the little bagg[ie] that she was trying to conceal.” Guajardo
read Morris her Miranda rights shortly afterward.
{¶ 6} On cross-examination, Guajardo reiterated that, when he took Bussard to the
patrol car, he told Morris not to move around or try to hide anything; he acknowledged
that she was not free to leave at that point. He also discussed the presence of an
unopened beer can in the car within reach of the driver, which violated the open container
law, but stated that he did not have probable cause to search the car at the point he saw
the beer can. Guajardo did not conduct any field sobriety tests on Bussard until more
than half an hour into the stop.
{¶ 7} Regarding Guajardo’s contact with Morris, he testified on cross-examination
that he had offered Morris a ride to the highway patrol post, but that at no point after he
“saw the way her eyes looked” was she free to leave on her own, because Guajardo
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thought she was under the influence and that her safety was his responsibility. Guajardo
testified that Morris had answered his questions, but he denied that she had been
“perfectly lucid.” Although she had the options to wait for someone to come and get her
or to get in a patrol car to go to the post, Guajardo acknowledged simply telling her that
he had to take her somewhere. Guajardo testified that he had searched Morris’s purse
for weapons and had not asked her permission to search the purse; she was not under
arrest at that time. As Guajardo described it, “the actual empty packet or empty bag”
that gave him probable cause to search the vehicle “was not open in the purse,” but was
in Morris’s hand because she had “pulled it out of her purse and held it in her hand” and
she “was trying to hide it.” Guajardo denied that he had planned to search the vehicle
before Morris was removed from it, saying he “didn’t have a legal way to get in that
vehicle” and “wasn’t going to search the vehicle.”
{¶ 8} On redirect examination, when asked if, in his experience, weapons can be
concealed in small bags or containers, Guajardo responded affirmatively, stating that
“[t]here’s a knife that’s the same size as a credit card, lighters that can change into knives,
phones that turn into guns.”
{¶ 9} The trial court overruled Morris’s motion to suppress. In its decision, the trial
court described its reasoning as follows: :
Before analyzing the specifics of the search, it is important to address
the context in which the search occurred. The defendant was a passenger
in a vehicle that was stopped by Trooper Guajardo. It was the driver, not
her, that was the subject of his investigation. The driver was patted down,
placed in handcuffs, advised of his rights, placed in the backseat of his
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cruiser, subjected to an HGN test, and arrested for OVI. The defendant,
on the other hand, remained in the front passenger seat of a parked vehicle.
Prior to the search, she was not patted down, placed in handcuffs, advised
of her rights, placed in the backseat of the cruiser, subjected to an HGN
test, or arrested. Trooper Guajardo testified that she was not free to leave,
but that was because he was concerned about her safety. He told her,
“You’re not in trouble at all,” and “You don’t have to answer any of my
questions.” He told her he would have to take her somewhere, again for
her safety, because he was not comfortable with her wandering the streets
if in fact she was impaired. He ultimately decided that he would transport
her to the post for safety.
As far as the defendant was concerned, Trooper Guajardo created a
very non-coercive atmosphere. This is the context in which he sought
consent to search her purse. He asked, “Can you open [your purse] up?”
It appears from State’s Exhibit #1 that she begins pulling items out from her
purse while he shines his flashlight on it.
The Court finds that the State has proven by clear and convincing
evidence that the defendant consented to Trooper Guajardo searching her
purse. It is true that under [State v. Gonzalez, 842 F.2d 748 (5th
Cir.1988)], “acquiescence cannot substitute for free consent,” but the
defendant did much more than merely acquiesce. While she did not
respond to his question verbally, she started pulling items out of her purse,
conduct that amounts to implied consent. * * * When he asked, “What about
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that little purse you pulled out,” she opened it up. She knew she did not
have to answer his questions, Trooper Guajardo having expressly told her
so, therefore it would be reasonable to conclude that she knew she did not
have to grant consent to search, meaning her consent was “freely and
intelligently given ‘uncontaminated by any duress or coercion, actual or
implied.’ ” * * *
{¶ 10} The court concluded that Guajardo was legally permitted under the Fourth
Amendment to conduct a warrantless search of Morris’s purse because “she ‘freely and
intelligently’ consented to it.”
{¶ 11} After the trial court overruled her motion to suppress, Morris pled no contest
and was convicted as described above.
{¶ 12} Morris appeals, asserting the following assignment of error:
DID THE WARRANTLESS SEIZURE OF DEFENDANT AND THE
SUBSEQUENT WARRANTLESS SEARCH OF HER PURSE AFTER A
PROLONGED STOP OF THE CAR SHE WAS RIDING IN AS A
PASSENGER VIOLATE HER CONSTITUTIONAL RIGHTS, AND IF SO,
SHOULD THE EVIDENCE HAVE BEEN SUPPRESSED?
{¶ 13} Morris argues that she did not voluntarily consent to the search of her purse
after Trooper Guajardo told her that she was not free to leave and that he would be taking
her to the patrol post. She argues that the trooper’s need to search her purse for
weapons was just an excuse or “a fishing expedition” for possible drugs, in violation of
her constitutional rights under the Fourth and Fourteenth Amendments. According to
Morris, “there was no need to search a closed purse that would be riding up front” in the
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patrol car, since she would not have access to the purse and, even if there had been a
weapon in it, she could not have reached it.
{¶ 14} Morris acknowledges that there was a reasonable articulable suspicion that
the driver had committed a traffic offense, but she contends that the traffic stop and her
subsequent detention were “prolonged and became a warrantless seizure in violation of
her constitutional rights.” Morris argues that while “she complied with the trooper’s
directives and seemed cooperative, she was unaware of her right to refuse consent to the
search of her purse.” She contends that the trooper testified that he informed her that
she did not have to speak with him, but he did not inform her that she did not have to
consent to the search of her purse; instead, she was told that her purse would be
searched.
{¶ 15} Morris asserts that, because she was not under arrest and Guajardo
testified that he did not have probable cause to believe that she had been involved in any
criminal activity, if she did not voluntarily allow him to search her purse, he had no
articulable reason to do so without a warrant. She asserts that, at the point Guajardo
looked in her purse after she voluntarily opened it “and saw a little baggie that she was
trying to conceal,” he may very well have suspected criminal activity, but he should have
then obtained a search warrant prior to completing the search of her purse and the
vehicle.
{¶ 16} The State argues that the warrantless search of Morris’s purse was lawful,
because she engaged in a consensual encounter with Trooper Guajardo by allowing him
to search her purse, and she “could have refused a ride from Trooper Guajardo and
refused the search.” The State argues that Guajardo “did not necessarily prolong the
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traffic stop,” and that it was “commensurate to the time it took Trooper Guajardo to look
up Bussard’s information and conduct HGN and field sobriety tests” on him. According
to the State, the traffic stop was not needlessly prolonged for “a fishing expedition.” The
State asserts that, regardless of the length of the stop, Guajardo was going to offer Morris
a ride, and the purse was going to be searched when Morris agreeing to ride with
Guajardo.
{¶ 17} The State also notes that Guajardo did not make a show of force or indicate
that Morris was obligated to accompany him and/or have her purse searched. According
to the State, “[e]ven when police officers have no basis for suspecting an individual of any
criminal activity, they may ask questions or even request to search the individual’s
property so long as the requests are not coercive.” The State asserts that, once Bussard
was arrested, Morris did not have a ride and could not drive herself, as she was under
the influence, she did not own Bussard’s vehicle, and the vehicle had expired tags.
Trooper Guajardo offered her a ride, and Morris accepted and freely consented to having
her purse searched.
{¶ 18} The State argues that, while Guajardo felt he could not simply let Morris
leave the scene on her own out of concern for her safety, he did not give her an explicit
instruction as to what she had to do. Moreover, the State asserts that Guajardo’s
“personal state of mind” was irrelevant; rather, the analysis turns on whether a reasonable
person in Morris’s position would have understood she could leave.
{¶ 19} Regarding Morris’s argument that the search of the purse was unjustified
because she would not have had access to it in the front seat of the cruiser, the State
responds that the degree of risk to Guajardo was irrelevant to the analysis “because
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[Morris] gave consent to search.” The State asserts that Guajardo was free to ask to
search Morris’s belongings in conjunction with his offer of a ride, even without any
suspicion of criminal activity. Moreover, according to the State, Guajardo had a
legitimate concern for his safety leading up to the search of the purse, because Morris
had been permitted to gather belongings from the vehicle and was holding the purse when
she approached Guajardo to accept the ride. Finally, the State asserts that the “safety
risk, and potential for [Morris] to pull a weapon from the purse was manifested at the time
of the search, regardless of the seating arrangement in the patrol vehicle.”
{¶ 20} As this Court has noted:
A trial court undertakes the position of the trier of fact in a motion to
suppress evidence. State v. Retherford (1994), 93 Ohio App.3d 586, 592,
639 N.E.2d 498; State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d
972. The trial court is in the best position to decide questions of fact and to
determine the credibility of witnesses. Retherford * * * at 592, * * *; State v.
Clay (1972), 34 Ohio St.2d 250, 251, 298 N.E.2d 137. “Accordingly, in our
review, we are bound to accept the trial court's findings of fact if they are
supported by competent, credible evidence. Accepting those facts as true,
we must independently determine as a matter of law, without deference to
the trial court's conclusion, whether they meet the applicable legal
standard.” Retherford * * * at 592 * * *.
The Fourth Amendment to the United States Constitution and
Section 14, Article I of the Ohio Constitution guarantee “the right of people
to be secure in their persons, houses, papers, and effects, against
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unreasonable searches and seizures.” It is well established that the Fourth
Amendment is not implicated in every instance where the police have
contact with a private individual. California v. Hodari D. (1991), 499 U.S.
621, 111 S.Ct. 1547, 113 L.Ed.2d 690; Retherford * * * at 593, * * *. The
United States Supreme Court has identified three categories of police-
citizen contact to identify situations where the Fourth Amendment
protections are implicated. State v. Hardin, Montgomery App. No. 20305,
2005-Ohio-130, at ¶ 13; Florida v. Royer (1982), 460 U.S. 491, 501-507,
103 S.Ct. 1319, 75 L.Ed.2d 229.
A consensual encounter can be an instance in which the Fourth
Amendment protections are not implicated. State v. Taylor (1995) 106
Ohio App.3d 741, 747-748, 667 N.E.2d 60. Encounters are consensual
where the police merely approach a person in a public place, engage the
person in conversation, request information, and the person is free to
choose not to answer and walk away. Hardin * * * at ¶ 14; United States
v. Mendenhall (1980), 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497.
“The Fourth Amendment guarantees are not implicated in such an
encounter unless the police officer has by either physical force or show of
authority restrained the person's liberty so that a reasonable person would
not feel free to decline the officer's requests or otherwise terminate the
encounter.” Taylor [at 747-748, citing Mendenhall at 554.] “Even when
police officers have no basis for suspecting a particular individual of any
criminal activity, they may ask questions and even request to search that
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person's property, so long as the requests are not perceived as coercive.”
State v. Hill (Nov. 7, 1997), Hamilton App. No. C-960963, citing Florida v.
Bostick (1991), 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389.
The request to check a person's identification does not make the
encounter nonconsensual; nor does the request to check one's belongings.
Hardin * * * at ¶ 14. Only once a person's liberty has been restrained has
the encounter lost its consensual nature and falls into a separate category
beyond the scope of a consensual encounter. Hardin * * * at ¶ 14, citing
Taylor * * * at 747-748 * * *.
A search is valid and does not violate the Fourth Amendment when
it is consensual, so long as the consent is freely and voluntarily given.
Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d
854. The burden of proof is on the state to show, under the totality of the
circumstances, by clear and convincing evidence that the consent was
voluntary. State v. Connors-Camp, Montgomery App. No. 20850, 2006-
Ohio-409, at ¶ 27.
State v. Crum, 2d Dist. Montgomery No.22812, 2009-Ohio-3012, ¶ 11-15.
{¶ 21} In State v. Sears, 2d Dist. Montgomery No. 20849, 2005-Ohio-3880, ¶ 37,
we stated:
* * * Knowledge of the right to refuse consent is not a prerequisite to
establishing voluntary consent, but is a relevant factor to be taken into
account. Consent to a search that is obtained by threats or force, or
granted only in submission to a claim of lawful authority, is invalid.
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[Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854(1973).] Such “lawful authority” is an express or implied false claim by
police that they can immediately proceed to make the search in any event.
Bumper v. North Carolina, [391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797(1968)].
{¶ 22} Six factors courts consider in determining the voluntariness of consent
include: 1) whether the defendant's custodial status was voluntary; 2) whether coercive
police procedures were used; 3) the extent and level of the defendant's cooperation; 4)
the defendant's awareness of his or her right to refuse consent; 5) the defendant's
education and intelligence; and 6) the defendant's belief that no incriminating evidence
would be found. State v. George, 2d Dist. Montgomery No. 25945, 2014-Ohio-4853,
¶ 28.
{¶ 23} As this Court has previously noted:
Courts and commentators have recognized that “consent [to search]
may be implied by the circumstances surrounding the search, by the
person's prior actions or agreements, or by the person's failure to object to
the search.” Kuras, et al., Warrantless Searches and Seizures (2002), 90
Geo.L.J. 1130, 1172. “Thus a search may be lawful even if the person
giving consent does not recite the talismanic phrase ‘You have my
permission to search.’ * * *.” United States v. Better-Janusch (C.A.2, 1981),
646 F.2d 759, 764.
State v. Lane, 2d Dist. Montgomery No. 21501, 2006-Ohio-6830, ¶ 40.
{¶ 24} We have carefully reviewed the video of Trooper Guajardo’s encounter with
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Morris. Initially, we cannot agree with Morris that the traffic stop was unlawfully
prolonged. As this Court has noted:
When a lawfully stopped vehicle contains passengers, the Fourth
Amendment permits law enforcement officers to detain those passengers
for the duration of the lawful detention of the driver. In addition, the
Supreme Court has held that, due to concerns for officer safety and the
minimal intrusion for the driver and passengers, the officers may order both
the driver and the passengers to exit the vehicle. Maryland v. Wilson
(1997), 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41.
State v. Brown, 2d Dist. Montgomery No. 20336, 2004-Ohio-4058, ¶ 14. The video
reflects that Morris was not detained beyond the lawful detention of Bussard. The video
was consistent with Guajardo’s testimony that he entered Bussard’s information, learned
his license was suspended, administered field sobriety tests, patted him down, read him
his rights, and placed him under arrest within a reasonable time. Guajardo was further
entitled to assume custody of the vehicle as part of his community caretaking role, since
neither occupant could legally operate the vehicle. State v. Fleming, 2020-Ohio-5352,
162 N.E.3d 981, ¶ 15 (2d Dist.)
{¶ 25} We further conclude that the State established by clear and convincing
evidence that Morris voluntarily consented to the search of her purse after Bussard’s
arrest. Guajardo testified, and the video (Exhibit 1) reflects, that Morris was told that she
did not have to answer any questions. Guajardo believed Morris to be impaired, and he
did not want her to be injured out on the road alone. When asked if she had someone
to call, Morris stated that her phone was off. Guajardo indicated that he would take her
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to his post. He allowed Morris to gather her belongings, which she began putting in her
purse. The video reflects that when Guajardo and Morris reached his cruiser, she placed
her purse there and, when asked to open her purse, she did so without objection,
removing items while Guajardo shined his flashlight inside the purse. The video reflects
that Morris further opened the small purse contained within her larger purse in the same
cooperative manner. While she did not expressly verbalize consent, we conclude that
more than mere acquiescence was demonstrated. In other words, her consent was
unequivocal.
{¶ 26} Guajardo expressed concern about weapons in the video and in his
testimony, and he stated that weapons can be contained in small spaces, such as the
smaller purse. The trial court clearly found Guajardo’s testimony to be credible, and we
defer to the trial court’s assessment of credibility. We cannot conclude that Guajardo
merely commenced a fishing expedition for evidence of criminality in Morris’s purse or
that Morris was subject to investigation for wrongdoing. Morris was not patted down,
cuffed, administered field sobriety tests, or placed in the cruiser as Bussard had been.
There was no duress, threat, or force. In the absence of coercive procedures, Morris
was fully cooperative, and she was not restrained until the point of her arrest. We agree
with the trial court’s characterization of the non-coercive atmosphere of the encounter
until the point of arrest. Until that time, Guajardo stated that he intended to take Morris
to the post to insure her safety.
{¶ 27} Based upon the foregoing, the trial court properly overruled Morris’s motion
to suppress. Accordingly, her sole assignment of error is overruled, and the judgment of
the trial court is affirmed.
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TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Ian A. Richardson
Karen S. Miller
Hon. Douglas M. Rastatter